Transcript The ESA of 1973

The ESA of 1973
 Purposes of the act:
– “to provide a means whereby the ecosystems upon
which endangered species and threatened species
depend may be conserved,
– to provide a program for the conservation of such
endangered species and threatened species,
– and to take such steps as may be appropriate to achieve
the purposes of the treaties and conventions set for in
subsection (a) of this section”
• treaties in subsection (a) are: migratory bird treaties with
Canada, Mexico, and Japan; CITES, 2 fisheries conventions,
and the convention on nature protection and wildlife
preservation in the western hemisphere.
Principal Provisions (USFWS 1996)
 Define “endangered” and “threatened” and
empowered the Secretary of Interior and
Commerce to list species (Sect. 3)
 Species of plants and inverts are available for
listing, as well as species and populations of
vertebrates (Sect. 3)
 Combined US and foreign species lists with
uniform provisions applied to both (Sect. 4)
 Provide matching funds for state coop agreements
(Sect. 6)
 Allow US to implement CITES (Sect. 8)
Administration of the Act
 Done by US Fish and Wildlife Service or
National Marine Fisheries Service
 Two main thrusts
– LISTING
– RECOVERY
Listing
 Initiated by petition (individual, group,
agency) or Service uses its priority system
and available biological information
 Priority system for listing
Monotypic Genus
Species
Subspecies
High Risk
Imminent Non-imminent
Threat
Threat
1
4
2
5
3
6
Moderate to Low Risk
Imminent Non-imminent
Threat
Threat
7
10
8
11
9
12
There are Too Many Listings to
Be Processed on Time
 USFWS has 4 tiers of priority to handle this
 Tier 1--Emergency listing actions
– immediate listing of species in imminent risk of
extinction
 Tier 2--Final listing decisions, sorting
among candidate species, processing
petitions to list, and reclassifying species by
de- or down-listing
 Tier 3--Critical habitat determination
Listing by Petition
 90 day finding: within 90 days of getting
petition, Service determines if it has merit
for consideration
 12 month finding: within 12 months of
petition, based on BIOLOGY alone, service
determines
– listing is not warranted
– listing is warranted
– listing is warranted but precluded (low priority)
Warranted Listings
 Rule published in Federal Register
 12 month review/comment period on
proposed rule
– may be extended to 18 months if biological data
is questioned
 Final rule is published in Federal Register
 Rule takes affect 30 days after publication
Judicial Review
 Negative 90 day findings, not warranted
findings, and warranted but precluded 1year findings
 Lawsuits filed at this time
How are Species Prioritized for
Listing?
 Recall the stated listing criteria used by USFWS
Monotypic Genus
Species
Subspecies
High Risk
Imminent Non-imminent
Threat
Threat
1
4
2
5
3
6
Moderate to Low Risk
Imminent Non-imminent
Threat
Threat
7
10
8
11
9
12
 As we discussed, species are not listed in order of
priority.
– Service gets sued, tries to complete final listing rules
before considering new proposals, etc.
 Conservation groups (PEER, Fund for Animals, etc) have
been concerned about a more fundamental problem-DELAY AND LACK of listing
– 33% are listed on time, 18% are >1year late
Listing Delays (GAO 1993)
 Congress
– May limit listing budgets
• Eg., Public law 104-6 (FY 1996 budget act)
– rescinded listing budget thereby imposing a moratorium
on listing
– removed with Clinton’s budget act in April 1996
– created a backlog of 243 species needing listing
– May rescind the ESA
• 5 million for 1998
– PEER claims its self-imposed to give the Service a way
out of lawsuits seeking listing
– USFWS counters that it is all they could expect to get
Why Limit Your Budget?
 PEER concluded that: “the greatest barrier to
implementation of the Endangered Species Act is
Bruce Babbitt.”
– Babbitt saw his control of endangered species funding
being taken away from lawsuits that dictated where he
had to spend what
– Babbitt may have feared that continued litigation on
behalf of endangered species would actually doom the
ESA
– By limiting funds for listing, FWS could allocate listing
funds toward species it felt were in most need by
invoking the Warranted But Precluded designation for
less needy species
• Must review each year, but cannot be overturned by courts
More Reasons for Delays
 Insufficient data
– spotted frog (3 year delay and then got “Warranted, but
Precluded” by higher priorities)
 Economic impacts of listing
– spotted frog, Louisiana black bear, Jemez Mountains
salamander, Bruneau Hot Springs Snail
 Complete conservation agreements rather
than list
– Jemez Mountains salamander, Bruneau Hot Springs
Snail
Effect of Delays
 Lawsuits
– Fund for Animals sued for listing of 85 Species
in 1992
• court ordered service get in gear and process listing
petitions
• subverts priority system
– only 41 of 85 species were priority 1,2, or 3
• delays ability (uses available funds) to list others not
in the settlement agreement
Major Effect of Not Following
Priority System
 Arbitrary and Capricious Conservation
– Sidle (1998)
• Lynx
Recovery
 Outline of recovery actions needed within
60 days
 Recovery Plans developed by Recovery
Team for the Regional Manager
 Prioritization of species (add C for conflict)
Monotypic Genus
Species
Subspecies
High Risk
High
Low
Threat
Threat
1
4
2
5
3
6
Moderate Risk
High
Low
Threat Threat
7
10
8
11
9
12
Low Risk
High
Low
Threat Threat
13
16
14
17
15
18
Recovery Tasks For A Species
 Tasks prioritized by recovery team
– Priority 1--action that must be taken to prevent
extinction or prevent the species from declining
irreversibly
– Priority 2--action that must be taken to prevent
a significant decline in species population or
habitat that comes short of extinction
– Priority 3--all other actions necessary to
provide for full recovery of the species
 Combined with species priority rank
– 1c-1 (top priority to do on top species)
Are Priorities Followed? (GAO 1988)
 Are recovery tasks done?
– Not all of them
• only slightly more than 50% of tasks in 16 plans
were initiated despite the plans being in place for an
average of 4+ years
 Are species recovered in order of their priority?
• NO, a few species get the bulk of the funds
– most funds go to 12 species, 6 of which are highly
endangered and 2 of which are barely threatened
 Are recovery tasks done in order of priority?
• NO, in all but 2 of 16 species lower priority tasks
were done before all priority 1 tasks were completed
5
Expenditures [thousands (000)]
1994
4
3
2
1
 Annual
0
Expenditures [log thousands (000)]
priority vs
vs logtot92
logtot93
5
Expenditures do
Not Follow
Priorities (Restani and
1995
4
3
Marzluff 2001)
2
1
0
0
2
4
6
8
10
Highest
12
14
16
Lowest
Priority rank
18
Why Aren’t Priorities Followed?
 Congressional earmarking




– takes part of Service budget and stipulates it to be spent on
particular species
Allure of sexy species
– high visibility, good PR, good chance of recovery
Lawsuits
– For sexy species with public appeal
Poor Coordination
– Conservation of species in one part of its range may not
offset conservation in less important region
Plans are not kept up to date
– priorities may no longer be valid
Effect of Earmarking
 1994
– total recovery budget for usfws = 29.55 million
– Earmarked portion was 10.392 million (35%)
• Only 28% of the earmarks were for species ranked
as 1 or 2 on the priority list
• A few sexy big winners
–
–
–
–
–
Peregrine (900K) rank = 9
Condor (600K) rank = 4C
Wolves (1.6 mill) rank =3-5C
Manatee (500K) rank = 5C
Spotted Owls (2.35 mil) rank = 9C
Mean (SE) expenditures ($)
Island Species Suffer From Not
Following Priorities
6x106
5x10
Mainland species
Island species
6
4x106
3x106
2x106
1x106
0
1992
1993
1994
1995
Wide-ranging Species Benefit
From Not Following Priorities
Mean expenditures (log thousand $)
5
4
3
logsqkm vs Residual
2
1
0
1
2
3
4
5
Range size (log km2)
6
7
8
Things are Different Down Under
(Endangered Birds in Australia; Garnett et al. 2003)
Why?
 No Congressional influence to muddy the
funding waters
– Single Commonwealth minister, in consultation
with advisors, can effectively allocate funds
based on national priorities
 No provision to challenge outcome of
allocation in the courts
Funding Helps (Garnett et al. 2003)
Sometimes Politics Undoes
Recovery Planning
 Grizzly Bear recovery planning for Bitterroot
Mountains of Montana and Idaho
– 6 year consensus effort
– Citizen Management Committee (appointed)
– Would bridge Yellowstone pops to northern pops in
Cabinet-Yaak Mountains
– FWS adopted plan in Nov. 2000
• June 2001, Norton suspends plan
– Bowed down to conservative State position
– Kempthorne: grizzlies are “massive, flesh-eating carnivores.”
• Public comments disagree with Norton
– 98% of Idahoans and 93% of Montanans wanted grizzly
reintroduction to proceed
Section 9 Provisions
 Limit any person subject to jurisdiction of US to
take endangered species (harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect,
or to attempt to engage in such conduct)
– Harm was later defined and upheld by
Supreme Court (1995; Babbitt vs. Sweet Home
Chapter of Communities for a Great Oregon) to
include HABITAT MODIFICATION
Section 9 Provisions Apply to
Endangered, Not Threatened Species
 Automatic application of all provisions to
ENDANGERED SPECIES
 THREATENED SPECIES can have
benefits, but must be stated by Secretary
– Sect 4(d) the secretary can “issue such
regulations as he deems necessary and
advisable to provide for the conservation” of
threatened species, including regulations that
prohibit any or all of the activities prohibited
for endangered species
Section 7 Provisions: Federal
Agencies Must:
 (1) Cooperate with the Secretaries and use their own
programs to further the conservation of endangered and
threatened species, and
 (2) Not authorize, fund, or carry out any action that would
jeopardize a listed species or destroy or modify its critical
habitat
– Jeopardy refers to acts that reasonably would be expected,
indirectly or directly, to reduce appreciably the likelihood
of survival and recovery by reducing reproduction,
numbers of distribution of a listed species
• weighs proposed activity plus CUMULATIVE
EFFECTS of activities likely to occur on state and
private lands
Section 7 Consultation
 Federal agencies must consult with the
Service when activity affects listed species
or likely jeopardizes proposed species or
habitat
– Informal Consultation--usually done to get
exemption from formal consultation (no effect)
– Formal Consultation--Action will affect listed
species. Service does a Biological Opinion of
whether action will result in jeopardy
• must be completed within 90 days of initiation and
delivered within 45 days
1978 Amendments
 Section 7 EXEMPTIONS for FEDERAL
AGENCIES
– After a biological opinion has been rendered by
the service, the affected agency, the governor of
the affected State, or the applicant for the
federal permit of questionable effect (if
applicable) can petition the Secretary
– Secretary determines within 20 days if basic
requirements of act are met and passes report to
Endangered Species Committee
• “God Squad”, “Gang of 7”
Exemption is Given if 5 of 7
Conclude:
 There are no reasonable or prudent alternatives for
the agency
 The benefits of the action clearly outweigh the
benefits of species conservation and the benefits
are for the public good
 The action is of regional or national significance
 The agency or applicant did not purposefully overcommit resources that would preclude any
reasonable or prudent alternatives
Two Exemptions Have Been
Given
 Grayrocks Dam, Wyoming (1979)
– court settlement provided for compromise solution
 BLM Timber sales, Oregon (1992)
– Spotted Owl habitat--Environmental groups sued
claiming that BLM had not considered new info on
NSO before it agreed to sell old growth
• Court agreed, but Congress attached Section 314 on
Dept of Interior’s appropriation bill (1988, 1990)
limiting court’s ability to challenge BLM mgmt
plans! BLM withdrew exemption application in
1993 when Clinton was elected
Designating Critical Habitat
 Critical Habitat includes habitat in and out of
current range that contains physical or biological
features (1) essential to the conservation of the
species and (2) requiring special management
considerations or protection.
 Federal agencies must not jeopardize listed species
or appreciably affect their abundance by reducing
or modifying their critical habitat (Sect. 7)
 Required to be designated at time of listing
– if PRUDENT and considering economics
– USFWS rarely sees it as prudent anymore
Designating Experimental
Populations
 1982 amendment added exemption for
experimental populations
– population established by human intervention
that is outside of the species’ current range
– essential versus nonessential experimental
populations
• essential have full protection of Section 7
• nonessential is not protected by Section 7
• all are viewed as THREATENED species
– can be helpful in getting public support/access
Experimental Populations Can
Backfire
 Yellowstone & central ID wolves
– 1997, judge found that introduced wolves could
not be considered a nonessential experimental
population and ordered them removed (stayed,
pending appeal)
– USFWS claim that reintroduction areas are
outside of current range is arbitrary and
capricious
– Cannot keep experimental population in area
because it diminishes protection to natural
population
Incidental Take
 Incidental take is take that results from
some activity “but is not the purpose of the
otherwise lawful activity.”
 Can take species only with permit
– Federal agencies get “incidental take statement”
in biological opinion during section 7
consultation
– Private and state entities get “incidental take
permit” (Sect. 10) by negotiating a habitat
conservation plan (HCP)
Mitigation for Take
 Basically incidental take is allowed if it is:
– minimized and will not appreciably reduce the
likelihood of survival and recovery of species
– mitigated
– defined as to extent
– monitored
– all alternatives are impractical
– applicant ensures funding and means to deal
with unexpected circumstances
Getting off the List
 Priority system for de-listing and down-
listing as well
– based on petition status and the impact of the
reclassification on other management (how
much $ will be freed up to do other work)
Petitioned
Unpetitioned
High Impact
1
2
Moderate Impact
3
4
Low Impact
5
6
Enforcement and Penalty
 Citizen suits---backbone of the act
– can sue individuals, corporations, or agencies
 Penalties depend on status of species,
knowledge of violator
– knowing violators can get 1year in prison and
$50,000 fine (half of both for threatened
species)
– can revoke leases, licenses, etc.
– equipment can be forfeited
Literature Cited
 USFWS 1996. A summary of the ESA and implementation activities.




(www.fws.gov/r9endspp/esasum.html).
Bean, M. J. and M. J. Rowland. 1997. The evolution of national
wildlife law, Third Edition. Praeger. Westport, CN.
USFWS 1983. Endangered and threatened species listing and recovery
priority guidelines. 48FR 43098.
Garnett, S; Crowley, G., and A. Balmford. 2003. The costs and
effectiveness of funding the conservation of Australian Threatened
Birds. BioScience 53:658-665.
Knibb, David. In press. Grizzly Wars. U. W. Press
Literature Cited
 USFWS. 1997. Recovery plan for the threatened Marbled Murrelet in
Washington, Oregon, and California. Portland, OR. 203pp.
 GAO. 1993. Factors associated with delayed listing decisions.
GAO/RCED-93-152.
 Sidle, JG. 1998. Arbitrary and capricious species conservation.
Conservation Biology 12:248-249.
 Clark, T. W., Reading, R. P., and Clark, A. L. (eds.) 1994. Endangered
species recovery: finding the lessons, improving the process. Island
Press